Donald Trump often blasts the 9th Circuit for failing to uphold his policies, such as the ones that demand Muslims be prevented from traveling to the United States, and referring to every appointed judge as an “Obama judge.” On Tuesday, the confirmation of one of his nominees, Daniel Bress, changed the makeup of the 9th Circuit entirely.
The Senate just confirmed Daniel Bress’s nomination to a California seat on the Ninth Circuit, despite opposition from both home-state senators. Make no mistake: this is a degradation of Senate institutional norms at the hands of Republican leaders. I voted NO.
— Kamala Harris (@SenKamalaHarris) July 9, 2019
Senators use a process of filling out and returning “blue slips” to support or oppose a court nominee to their state’s federal benches. Most often, if a nominee does not get the blue slips of one or both senators from their state returned with those senators’ approval, that is honored by the state’s fellow senators and a nominee doesn’t get confirmed.
In California, that no longer holds true as of the confirmation of Bress. On her website, Sen. Dianne Feinstein (D-CA) said:
‘The fact is that Mr. Bress is neither a California attorney nor a California resident. In fact, he’s not been a resident of the state in over a decade. He’s lived and practiced law in the Washington, D.C., area for almost his entire adult life.
‘As California’s senators, Senator Harris and I know that the kind of experience and connection to California is really necessary for a Ninth Circuit judge to be effective on the bench.’
I’m very disappointed the Daniel Bress nomination is moving forward to fill a California seat on the Ninth Circuit. Both @SenKamalaHarris and I objected to his lack of connections to our state. He’s not the right nominee for this lifetime position. https://t.co/GejvgS76Tr
— Sen Dianne Feinstein (@SenFeinstein) July 9, 2019
Bress, who does not live or work in California, is a conservative judge whose presence upsets the tenuous balance of liberal versus conservative judges. In California, voters are largely more liberal and were opposed to his confirmation. Feinstein and Sen. Kamala Harris (D-CA), neither of whom returned their blue slips, voted down his confirmation in harmony with their constituents. GOP senators, however, ignored their dissent as well as the will of the voters in California.
‘Honoring the blue slip ensures that the senators who understand and are accountable to their constituents have a say in judicial nominations for their home states.
‘Our blue slips, Senator Harris’ and mine, were not returned. Ultimately that symbolizes our objections. I was therefore very disappointed that the White House ignored that and moved forward with Mr. Bress’ nomination.’
— U.S. Senate Votes (@usasenatevotes) July 10, 2019
It isn’t unprecedented for a judge to be confirmed despite opposition from both senators, but it is somewhat rare. Feinstein pointed this out on her website, saying that only four federal judges from California had been approved after their nominations to benches in other states, and all four had the support of one or both senators from that state.
‘Some of my Republican colleagues have cited past instances when an attorney living and practicing law in one state has been nominated and confirmed to a seat in another state. This is highly unusual.
‘Republicans have only been able to provide examples of this occurring four times in the past 20 years – and in each case it was with the support of the home-state senators. This support is simply not here in this case. This is not the case with this nominee.’
— Rodney L. Tahe (@rltahe) July 9, 2019